BY MALIA ZIMMERMAN – Will Honolulu’s pricey and controversial rail project ever be built or will it be derailed in court? That could depend on what Ninth Circuit Court Judge Wallace Tashima decides in the next few weeks.
Tashima heard oral arguments on Tuesday, August 21, in one of Hawaii’s most closely watched legal cases –Honolulutraffic.com et al v. Federal Transit Administration et al – after all 7 of Hawaii’s federal judges were recused from the case. His decision may ultimately determine the future of Honolulu’s controversial $5.2 billion rail project.
Eight plaintiffs – who range from environmentalists, businessmen and a transportation expert to a former governor, law professor, doctor and retired judge – maintain the city’s actions were “arbitrary” and “capricious” when:
- The city did not adequately consider viable transportation alternatives in its 2006 Alternatives Analysis before selecting heavy elevated steel on steel rail as the city’s mass transit system;
- The city did not vet alternatives in the Environmental Impact Statement, the city will negative impact Oahu’s historical sites and violated the National Environmental Policy Act;
- The city decided to conduct the archeological inventory in four phases, rather than surveying the entire 20-mile route before starting the project.
The plaintiffs, who include former Gov. Benjamin Cayetano, Law professor Randall Roth, Retired Judge Walter Heen, retired businessman and transportation expert Cliff Slater, Dr. Michael Uechi, Hawaii’s Thousand Friends, Outdoor Circle and Sen. Sam Slom’s Small Business Hawaii Entrepreneurial Education Foundation, sought a motion for summary judgment in their challenge against the City & County of Honolulu and the Federal Transit Administration.
More than 100 people, including many opposed to the rail project, as well as representatives from special interest groups benefitting from the rail project, listened closely to oral arguments and the judges’ questions.
The courtroom was so packed, even after the public filled the all seats including those in the jury box, and court staff rolled in several dozen more chairs, there were still people left standing.
Nicolas Yost, a partner in California-based SNR Denton, and the recipient of the American Bar Association’s 2010 Award for Distinguished Achievement in Environmental Law and Policy, was the lead attorney for the plaintiffs, but a last minute emergency surgery prevented him from traveling to Hawaii for the hearing.
So instead, Matthew Adams, an attorney with SNR Denton, spoke for the plaintiffs. At the judge’s request, Adams addressed the impact of the rail on historical sites and native Hawaiian burial sites as well as on alternatives the city may not have considered.
Alternatives Weren’t Vetted, Plaintiffs Claim
Adams maintained the city ignored more affordable and environmentally friendly transportation alternatives in favor of the rail project.
That included a Bus Rapid Transit System (BRT), which was selected by Parsons Brinkerhoff as the best alternative for the city’s transportation needs in a 2003 alternatives analysis when then Mayor Jeremy Harris supported that system
Parsons Brinkerhoff tossed out the $10 million 2003 analysis a couple of years later and wrote a new plan in favor of rail after Honolulu Mayor Mufi Hannemann made it clear he supported the elevated steel on steel system.
Attorneys for the city and FTA defended the rail, and said the Bus Rapid Transit System and “managed” lanes or “hot” lanes, were properly reviewed but are not viable for Honolulu’s busiest traffic corridor.
They argued the rail would create “transportation equity” by making transit affordable to people who cannot afford to drive.
Attorney William Meheula represented pro-rail “intervenors” including Faith Action for Community Equity Hawaii, an activist group advocating for more government subsidies in public housing and transportation, and Pacific Resource Partnership, an affiliate of the Carpenters Union and a major backer of the rail project. He claimed people taking the Bus Rapid Transit system from Kapolei to town could be on the Bus for up to four hours and rail is their best mass transit alternative.
But Slater, one of the state’s best known transportation experts, said TheBus system that exists today – as well as any Bus Rapid System that could be developed – is a quicker means of transport than the proposed rail. He’s timed TheBus and compared the travel time with the rail arrival estimates.
Native Hawaiian Burials May be Unearthed
Native Hawaiian bones (iwi) that might be in the rail’s path was a hotly contested issue.
Meheula claimed Hawaiian burials are not in jeopardy because if the construction workers find any bones, the city will leave it up to the Oahu Burial Council to decide whether the bones should be moved or if the rail project should be rerouted.
“We haven’t run into any burials yet. But if it does happen, the Native Hawaiian community can be rest assured the city has committed that they’re gonna move the project,” Meheula said.
But the plaintiffs countered that rerouting the rail as much as 100 feet around burials is not as easy as the city’s attorneys portends – especially in the “downtown/Kakaako portion of the rail project nicknamed “burial central.”
“They’re going to talk to the burial council and say, ‘Where can we put these bones, because we’re not going to move this column because it’s too expensive,’” Cayetano said.
They already know of at least two major burial sites in the rail path, Adams said, arguing the city should have investigated the entire route before beginning construction in the Ewa plains.
“What really happened here on the burials is that they refused to look for them and then they made the decision to proceed because nothing had been found,” Adams said.
Plaintiffs Hope for Quick Ruling in Their Favor
Judge Tashima appeared to agree with the plaintiffs’s claim that traditional cultural properties or TCPs were not identified by the city until after the Record of Decision was issued and that it was improper.
Tashima also did not seem to buy the city’s claim that it could screen out alternatives to rail before the Environmental Impact Statement was issued.
After the conclusion of oral arguments, Tashima told the parties: “If the plaintiffs prevail, we’ll have to have a discussion on remedy. We’ll see if we have to get there or not.”
The plaintiffs were pleased with the judge’s questions and knowledge of the case and are optimistic about the judge’s decision, which could come in a matter of weeks.
University of Hawaii law professor Randall Roth, a plaintiff in the case, said even if Tashima rules for the plaintiffs on one count, it could stop the project.
At the city’s direction, construction crews have begun building the rail in the Ewa vacant agricultural fields. But the city attorneys assured the plaintiffs in June they could easily tear down the rail support columns if the judge rules against them.
Elections Offer Another Battlefield for Pro and Anti Rail Forces
Even if Tashima happens to rule for the city and the federal government, the plaintiffs believe they can stop the rail another way – through the election of former Gov. Ben Cayetano, who besides being a plaintiff is a candidate for Honolulu mayor.
Cayetano, who won every one of his elections over three decades and then retired in 2002, has returned to politics. He is running for mayor because he believes the city is poorly managed, the infrastructure is dilapidating and the rail will bankrupt the city and leave an ugly scar on its landscape. Cayetano won 44 percent of the vote in the August 11, 2012 Primary Election in a three-way race.
Because Cayetano didn’t win 50 percent of the vote, he will face Kirk Caldwell, a former managing director under Hannemann, in the November 6 General Election. Unlike Cayetano, Caldwell is a strong supporter of the rail project. Cayetano promises if he wins, he will stop the project through his administrative powers.